I cannot forecast to you the action of Russia. It is a riddle wrapped in a mystery inside an enigma. Winston Churchill

Aug 9, 2008

GEORGIA IN STATE OF WAR WITH THE RUSSIAN FEDERATION

NON-PAPER

Note: This is a brief document that summarizes the facts that took place during the last days on the territory of Georgia. This paper focuses on the qualification of the current facts with respect to the situation between Russian Federation and Georgia as of August 9, 2008. This document represent a copyright of a small group of Students from Georgia, who remain solely responsible toall interpretation given to the facts in context of Jus Ad Bellum and Jus in Bello and does not represent an official opinion of any Government, Institution or Agency.

Introduction

In the last couple of days the situation in Georgia has dramatically changed. Currently Georgia is in State of War. Namely, in violation with the principles enshrined in the UN Charter, the Russian Federation has used force against the territorial integrity and sovereignty of Georgia, thus forcing Georgia to act in self-defense in accordance with requirements given in article 51 of the UN Charter. It is also contended, that Georgia is in situation of an international armed conflict with the Russian Federation which governed by the relevant rules of the International Humanitarian Law and unfortunately, the Russian Federation is committing grave violation of the rules of humanitarian law by targeting civilian population and cities, rather than directing its attacks against military objective.

Factual Situation on Grounds

From early hours of August 8, the armed attack was launched against Georgia by Russian Federation. The territory next to South Ossetia (Tskinvali Regions) in particular cities of Gori, Kareli and nearby villages, were bombed. In particular two SU 24 type fighter jets violated the airspace, intruded into the territory of Georgia from Russian Federation and bombed radar station located in Gori region. A missile was also dropped in the village of Variani as a result of which 7 persons were injured. Around 11:30 a.m. four SU 24 fighter jets entered the airspace of Georgia. 2 bombs were dropped at the police office building in Kareli, as a result of which several persons were injured.

Moreover since the 7th of August 2008, 3 columns consisting of hundreds of armed personnel as well as tens of heavy armed vehicles were entering region of Georgia - South Ossetia, via Rocki tunnel, from the Russian Federation.

From the second part of the day (8th of August 2008), following cities have been bombed by the fighter jets entering territory of Georgia from the Russian Federation:

-City of Gori and nearby areas;

-Black SeaPort Poti;

-Upper Abkhazian territory;

-Villages such as Senaki, Khoni and Oni;

There are casualties among civilian population in all the aforementioned places, as the bombing has been directed towards the cities and villages per seindiscriminately. Currently, according to official information 57 civilians had been killed in course of the hostilities.

The aforementioned facts have been preceded by an escalated situation in the Tskhinvali Region of Georgia from 1st of August 2008, when the attacks have been carried out by the representatives of the Separatist regime of South Ossetia (Tskinvali Region). Georgian villages – Upper and Lower Niqozi, Avnevi, Ergneti and Eredvi were subjected to the heavy fire from machine-guns and grenades. The fire was lead in the direction of check-points of Georgian peacekeepers and police. As a result of an intensive shelling, 6 civilians were injured, houses destroyed. Attacks continued on 5-6 of August, when fire from machineguns and grenades were opened at Georgian village Nulli and Georgia and police checkpoint respectively. On August 7 separatists once again attacked Georgian villages Eredvi, Frisi, Avnevi, dvani and Nulli, as a result of which 2 Georgian peacekeepers were wounded. Later that day the attacks were continued.

The Russian Federation under the pretext of its right to “self-defense of its nationals abroad” decided to enter the territory of Georgia from early hours of 8 of August 2008. Its claims are based on the fact, that the population of the Tskhinvali Region in recent hears has received the citizenship of the Russian Federation. However, currently, as noted above, the military operation by the Russian armed forces are carried out outside the Tskhinvali region and include bombing of the cities of Georgia near the capital Tbilisi as well as of cities and villages that are hundreds of kilometers away from the Tskhinvali Region.

PART ON JUS AD BELLUM

The Russian Federation has violated the Principles on the Prohibition of the Use of Force and has carried out Acts of AGRESSION

Russia Violated the Principles of the UN Charter and carried out Act of Aggression

The Russian has argued in the course of last two days that it has been acting in accordance with the principles of international law, namely it has been acting in self-defense and entered to territory of Georgia in order to defend its citizens/nationals on the territory of South Ossetia, Georgia. It shall be noted, that South Ossetia (Tkshinvali Region) is part of Georgia that has been under control of the separatist regime supported by the Russian Federation.

First it is retained that acts of the Russian Federation constitute violation of the prohibition of the use of force ad constitutes act of an agreesion. And second, the acts of the Russian Federation cannot be justified under the self-defense, either under the treaty law or customary rules of international law.

Article 2 paragraph 4 of the UN Charter stipulates that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” As it is clarified by authoritative scholar Simma in A Commentary to the UN Charter, the prohibition includes any use of armed force, even small and temporary operations that do not result in any deprivation of territory. The Russian Federation has been carrying out armed attack against Georgia since early morning of 8 August 2008, by carry out targeted bombing of various regions of Georgia.

It is noteworthy that there are certain exceptions to the prohibition of the use of force strictly defined by the UN Charter. Namely, the legitimate use of Self-defence under Article 51 is one of such exceptions. Another exception is actions mandated by the Security Council under Chapter VII of the Charter. The former is argued by Russian as a lawful ground for use of force and the legal arguments are given below. The latter is not relevant to the given facts and thus not discussed.

In addition, it represents a typical example of intervention that goes against the territorial integrity and political independence of Georgia[1].

According to the Article 1 of the 1974 Resolution 3314 on the Definition of Aggression, “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”. The definition almost repeats the wording of article 2.4 of the UN Charter. The difference lies within the term “armed force” inserted and the “threat” of use of force omitted. It is thus evident that according to the definition proposed by the resolution, unlike article 2.4 of the UN charter, aggression takes place only in case an “armed force” is used and the “threat of use of force” does not constitute aggression under international law.

The Resolution contains seven provisions defined as aggression:

oInvasion or attack by armed forces of one State upon another State, occupation or annexation resulting from this;

oBombardment or the use of any weapons by one State against another State;

oBlockade of ports or coasts of one State by armed forces of another State.

oAttack on armed forces of one State by armed forces of another State;

oUsing a State’s armed forces within another State, when this presence is with the agreement of the receiving State, but when the usage is contrary to the terms agreed upon or the presence is for a longer time period than agreed upon;

oOne State allowing another State to use its territory for perpetrating acts of aggression against a third State;

oSending armed bands, groups, irregulars or mercenaries into another State to carry out acts of force amounting to acts of aggression as they are defined above or substantial involvement therein.[2]

The acts listed in article 3 are not exhaustive and according to the article 4 the SC has discretion to consider other acts as acts of aggression under the provisions of the UN Charter.

It is evident from the current situation in the territory of Georgia that the actions of the Russian Federation clearly amount to the acts of aggression. From early hours of August 8 territory next to South Ossetia in particular cities of Gori, Kareli and nearby villages, were bombed. The Russian Federation’s clear aggression leads to the sorrowful results for Georgia Moreover, even today, when Georgia is still ready for the peaceful negotiations, the Russian Federation continues bombing Georgian territory

Russian can not lawfully invoke right of self-defense as legal grounds for intervention in Georgia

Under treaty law, Article 51 of the UN Charter recognizes the inherent right of self-defence. The right to self-defence enshrined in Article 51 applies to cases where an “armed attack” occurs against a Member of the United Nations.[3] The exercise of this right is subject to the State concerned having been the victim of an armed attack.[4] Existence of prior armed attack carried out by state against a state is essential.[5]In order to be legitimate, a military action carried out in self-defence must meet the requirements of necessity (no other alternative action is possible) andproportionality (the response is proportionate to redress the initial attack).

Not all violations of article 2.4 of the UN Charter constitute an “armed attack”. The latter only exists when force is used on a relatively large scale and with substantial effect. [6] ICJ stated in the Nicaragua case: “[...] an armed attack must be [...] of such gravity as to amount to” an actual armed attack”[7]

It is argued that the Russian Federation may not invoke the principle of self-defence since the incidents in the region of South Ossetia, which constitutes an integral part of Georgia and is recognized as such by the international community, did not constitute an “armed attack” of Georgia against the Russian Federation. In addition, it is submitted that the military action of the Russian Federation did not meet the requisite of necessity since other diplomatic means were available in order to redress the issue and of proportionality, as far as the military operation carried out by the Russian Federation affected and caused damage to the whole territory of Georgia on which casualties were fixed among the civilian population and civilian objects.

Self-defense in customary international law is based on the "Caroline Doctrine," which established the state's right to use force in order to defend itself against real and imminent threats that require immediate response in circumstances where all peaceful means of resolving the dispute have been exhausted and the response is essential and proportional to the threat[8].

It is argued that the Russian Federation cannot invoke its customary right to self-defence since:

oThe Russian Federation has not faced the real and imminent threat leading to self-defence. The confrontations in the region of South Ossetia, which was caused by the Russian Federation itself, posed real and imminent threat to Georgia;

oEven if there existed any kind of threat to the Russian Federation, it has not exhausted all peaceful means for the settlement of the dispute, as far aseven today, when Georgia is ready for the peaceful negotiations, the Russian Federation continues bombing Georgian territory.

3.Russian can not justify its act under the pretext of “Protection of Its National Abroad”

Russian Federation has been threatening Georgia to use force “for the protection of its nationals” in the Georgian two breakaway regions of Abkhazia and Tskhinvali Region.

It is argued, that international law does not recognize the legality of use of force for the protection of the “nationals abroad” as such and existing practice shows that, States have argued the right to protection nationals abroad within the context of the right of self-defence[9].

Furthermore, the International Law Commission in its First Report on Diplomatic Protection of 2000, approved by the General Assembly by its resolution, emphasized that the state practice in combination with the prohibition of use of force under Article 2(4) of the UN Charter outlaws use of force under the pretexts of diplomatic protection. The only exception to this provision, permitting the unilateral use of force by States, is Article 51, which deals with the right of self-defense[10]. The illegality of Russia’s possible invocation of the right to self-defense has been discussed above.

Thus, any use of force by the Russian Federation against Georgia can only be categorized as an illegal armed reprisal, which is clearly prohibited under international law[11].

PART ON JUS IN BELLO

International Humanitarian Law (IHL) is Applicable to the State of War in Georgia and Parties to the Conflict Should Comply with Respective Rules of IHL

1.IHL is Applicable to the Current State of War whatever the Argument of the Russian Federation can be under the Rules of Jus Ad Bellum

It is contends that the on-going activities fall under the legal frameworks of the law of armed conflicts, i.e. international humanitarian law (IHL) and the treatment of the persons as well as conduct of hostilities are regulated by the well defined rules and principles of IHL.

In addition it shall be noted that the purpose of IHL is to limit the suffering caused by war by protecting and assisting its victims as far as possible. IHL also known under the term Jus in Bello therefore addresses the reality of a conflict without considering the reasons for or legality of resorting to force. It regulates only those aspects of the conflict which are of humanitarian concern.IHL applies irrespective of the reasons for the conflict – whether the force used was legitimate in accordance with the principles of UN Charter (under law of Jus ad Bellum).

IHL is intended to protect war victims and their fundamental rights, no matter to which party they belong. That is why IHL (Jus In Bello) must remain independent of law on the use of force or law on the prevention of war (Jus Ad Bellum).

2.Applicable Regime under IHL governing situation between Georgia and the Russian Federation is the Laws of an International Armed Conflict

It is argued that the existing situation, since August 7 2008 amounts to an international armed conflict as defined and governed by Common Article 2 of the Four Geneva Conventions of 1949. Paragraph 1 of the Common Article 2 declares “…the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”. Formally, Common Article 2 determines two requirements for the application of the Four Geneva Conventions of 1947. First, that there shall be an armed conflict between two or more High Contracting Parties – that is between States that are parties (ratified/acceded) to the Geneva Conventions. And second, there is no need for formal declaration of war. Therefore, any declaration on behalf of the Russian authorities that there is no

As to what amount actually to an armed conflict the respectful Commentary of the International Committee of the Red Cross as well as Opinion Paper issued by the International Commission of the Red Cross in March 2008 noted, that international armed conflict occurs when one or more States have recourse to armed force against another States regardless of the reasons and intensity of the confrontation. It depends on the factual conditions – what actually happens on the ground[12].

In addition, according to the well-established practice of the International Criminal Tribunal for Former Yugoslavia “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”[13].The Commentators and Legal experts also concerted that “…as soon as the armed forces of one State find themselves with wounded or surrendering members of the armed forces or civilians of another State on their hands, as soon as they detain prisoners or have actual control over a part of the territory of the enemy State, then they must comply with the relevant convention"[14].

There is an international armed conflict within the meaning of Common Article 2 of the Geneva Conventions of 1949 between Georgia and the Russian Federation due to the factual circumstances on the ground cited above. The aforementioned facts clearly indicate direct involvement of the Russian armed forces into the conduct of hostilities on the territory of Georgia that constitutes an international armed conflict between Georgia and the Russian Federation and triggers application of the Four Geneva Conventions of 1949 to which both Georgia and the Russian Federation are parties to[15].

3.Persons shall be Protected in accordance with the IHL

According to IHL, the persons in situation of an international armed conflict fall under protection of the Four Geneva Conventions of 1949, namely:

oGeneva Convention I for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field;

oGeneva Convention II for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea;

oGeneva Convention III Relative for the Treatment of Prisoner of War;

oGeneva Convention IV Relative to the Protection of Civilian Persons in Times of War;

oAs well as Additional Protocol I of 1977;

Under international humanitarian law, no one has an intermediate status – everyone in enemy hands must have some definite status, either a "prisoner-of-war…covered by the Third Geneva Convention," or a "civilian covered by the Fourth Geneva Convention."[16]

4.Parties to the Conflict shall Abide to the Principles and Rules Governing Conduct of Hostilities in accordance with IHL – Russian Federation violates Principles of Distinction

The law governing the conduct of hostilities regulates military operations by prohibiting or limiting certain attacks as well as the use of certain arms. The law of conduct of hostilities is based on a certain number of general rules codified in Additional Protocol I as well as regarded part of customary law.

First, the right of the parties to an armed conflict to choose means and methods of warfare is not unlimited[17]. Second, themeans and methods of combat of a nature to cause superfluous injury or unnecessary sufferingare prohibited[18]. And third, the respect for principle of distinction shall be upheld. Namely[19]:

Distinction between civilians and combatants;

Distinction between civilian objects and military objectives;

Prohibition of indiscriminate attacks;

Proportionality in attack;

Precautions in attack;

Precautions against the effects of attacks.

In addition all participants to an armed conflict to retain following:

Theprohibition on declaring that no quarter will be given, or that there will be no survivors.[20]

Prohibition of attacks against persons hors de combat, or those no longer participating in hostilities;[21]

The facts on the ground already show that the Russian Air Forces have violated the fundamental principles governing the conduct of hostilities as the bombing has been carried out with respect to the civilian objects. Hence, during last two days the main target of attack have been cities and villages populated by civilians and not representing military objects. As a result of these attacks houses and other property have been destroyed and tens of casualties among civilians are registered. These activities represent a flagrant violation of the principles mentioned above.

5.All Parties to an International Armed Conflict should comply with the rules and principles of International Humanitarian Law and with the Requirements of Humanity

We call upon all parties to an international armed conflict as well as members of the international community “to respect and ensure respect of application” of IHL norms in the conflict region in accordance with the requirements of the Common Article 1 of the Four Geneva Conventions of 1949, the State Parties to the said Conventions are under a legal obligation to implement in a good faith[23].

In particular, we urge all parties apart from the specific rights and obligations envisaged in the relevant articles of the Four Geneva Conventions of 1949 and Additional Protocols I and II, it would comply with the fundamental guarantees enshrined in Common Article 3 of the Geneva Conventions. Common article 3 is like a “convention in miniature”, frequently sited list includes basic rules of humanitarian law applicable in armed conflict[24], known as “elementary consideration of humanity” deriving from the “principles of humanity and the dictates of public conscience” embedded in Common Article 3[25], which has been recently categorized as minimum core of mandatory rules… reflecting the most universally recognized humanitarian principles[26].

Paragraph I of the Common Article 3 provides in imperative manner humane treatment without discrimination to all persons taking no active part in hostilities, including the members of armed forces who have laid down their arms and those places hors de combat by sickness, wound, detention or any other cause. This paragraph includes list of acts that shall remain prohibited atany time and in any place with respect to abovementioned persons - as such, it allows no deviation from the following minimum prohibition:

-the violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

-taking of hostages;

-outrages upon personal dignity, in particular humiliating and degrading treatment;

-the passing of sentence and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Paragraph II in general terms notes the obligation to collect and care for wounded and sick.

[3]Legal Consequences of the Construction of a Wall in the OccupiedPalestinianTerritory, Advisory Opinion, ICJ Reports (2004), para. 139 at 194; L. Henkin, How Nations Behave (2nd ed., ColumbiaUniversity Press, 1979), at 141-145; A. Cassese, The Current Legal Regulation Of The Use Of Force (Martinus Nijhoff Publishers, 1986) at 9-38.

[9]M. Shaw, International Law, 5th ed., Cambridge, pp. 132-133; See also W. Gilmore, The Grenada Intervention, London, 1984, p. 1042; C.J. Greenwood, International Law and the United States’ Air Operation against Libya, 89 West Virginia Law Review, 1987, p. 933;

[10]International Law Commission, 52nd Session, First Report on Diplomatic Protection, by Mr. John Dugard, Special Rapporteur on Draft Articles, A/CN.4/506, 7 March 2000;

[11]SCOR, 19th Year, 111th meeting, 8 April 1964; Legality of the Threat or Use of Nuclear Weapons , ICJ Reports, 1996, pp. 226 & 246; R.B. Lillich, Forcible Self-Help and International Law, 62 US Naval War College International Law Studies, 1980, p. 129;

“any difference arising between two States and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place"

[15]Georgia acceded to the Geneva Conventions and Additional Protocol I and II of 1977 on 14.09.1993. The Russian Federation has been party to the Four Geneva Convention of 1949 in 10.05.1954, and Additional Protocol I and II in 29.02.1989;

[20] Article 40 of the Additional Protocol I makes it a violation to command that there will be no survivors, to so threaten to the enemy (for example, in order to hasten his surrender) or to conduct hostilities in such a fashion. The requirement of an unconditional surrender by one Party to the conflict to its adversary may not under any pretext mean a refusal of quarter. It follows that, quoting from the commentaries to Protocol I, that “an order of “liquidation” is prohibited, whether it concerns commandos, political or any other kind of commissars, irregular troops or so-called irregular troops, saboteurs, parachutists, mercenaries or persons considered to be mercenaries, or other cases. It is not only the order to put them to death that is prohibited, but also the threat and the execution, with or without orders”.

[21] Article 41 of Protocol I defines a person as 'hors de combat' if :(a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape. The Commentaries to article 41 clearly indicate that this rule protects both regular and irregular combatants, those whose status is in doubt or even simple civilians. The Commentaries further specify that there are no exceptions and that respect for the rule extends equally to the civilian population, who must also – along with the combatants – respect the persons 'hors de combat'.

[22] Acts inviting the confidence of an adversary to lead him to believe that he is entitled toprovide, or is obliged to accord, protection under the rules of international law applicable in armed conflict, when such acts are done with the intent to betray that confidence. The prohibition of perfidy is not absolute, but limited to cases where it is used to kill, injure or capture an enemy.

[23] L. Boisson Chazournes and L. Condorelli, Common article 1 of the Geneva Conventions revisited: Protecting collective interests, 31-03-2000 International Review of the Red Cross No. 837, p. 67-87; See also U. Palanwankar, Measures available to states for fullfiling their obligation to ensure respect for humanitarian law, 28-02-1994 International Review of the Red Cross no 298, p.9-25;